In the courts of the United States, an action of ejectment is an
action at law, and the plaintiff must recover on the legal
title.
While the title to public land is still in the United States, no
adverse possession of it can, under a state statute of limitations,
confer a title which will prevail in an action of ejectment in the
courts of the United States against the legal title under a patent
from the United States.
A deed of land sold for nonpayment of taxes which recites that
the sale was made on a day which was not the day authorized by law
is void on its face, and is not admissible in evidence to support
an adverse possession under a statute of limitations.
This cause was submitted April 15, 1889 at the last term, the
briefs of counsel for both parties having been filed in due course
with the clerk of this Court. The Court thereupon
Page 132 U. S. 240
refused to consider the case on its merits for the reason that
the record did not contain copies of the pleadings, and leave was
granted to the plaintiff in error to sue out a writ of certiorari
to bring into this Court the papers omitted from the transcript.
Redfield v. Parks, 130 U. S. 623.
Such certiorari was then sued out, and return thereto duly made.
The case made by the original record and the papers brought up on
return to the certiorari is stated in the opinion of the Court.
On the 15th of October of the present term, the counsel for the
plaintiff in error moved for leave to file an additional brief and
for leave to have an oral argument when the cause should be reached
on the docket. The court on October 16th granted the counsel on
both sides leave to file additional briefs, but denied the motion
as to oral arguments.
Page 132 U. S. 241
MR. JUSTICE MILLER delivered the opinion of the Court.
This is a writ of error to the Circuit Court of the United
States for the Eastern District of Arkansas. The action in that
court was in the nature of ejectment to recover possession of real
estate, brought by Jared E. Redfield, the present plaintiff in
error, against William P. Parks, Charles Harper, and others. The
case was submitted to the court without a jury, which made a
finding of facts on which was rendered a judgment for the
defendants.
The principal issue in the case before that court was on the
defense under the statute of limitations. The plaintiff relied
upon, and introduced in evidence, a patent from the United States
dated April 15, 1875, conveying the property to the Mississippi,
Ouachita and Red River Railroad Company, reciting the purchase by
that company of the land in controversy and the payment of $594.48
for it.
The plaintiff, Redfield, purchased this land at a judicial sale,
on a judgment against that company, for the sum of $500, and
received a deed under that purchase. It further appears from the
findings of the court that the railroad company made payment in
full for the land September 10, 1856, and received at that time the
certificate of the register of the land office. The approval of
this entry for the issue of a patent was made at the General Land
Office in Washington June 1, 1874. The circumstances under which
the delay in the issue of a patent was had are not stated.
Page 132 U. S. 242
The defendants relied upon a deed made by the County Clerk of
Lafayette County, Arkansas to W. P. Parks and James M. Montgomery
on the 11th day of August, 1871, upon a sale for taxes for the year
1868, and upon adverse possession under the statute of Arkansas of
two years in regard to claims under tax sales, and the general
statute of limitation of seven years.
This action was commenced by the plaintiff on the 11th day of
April, 1882. The court announced the following conclusions of
law:
"1st. That said tax deed to Parks and Montgomery for said land
is void because the land was sold for the taxes of 1868, on a day
not authorized by law."
"2d. That under the laws of this state, notwithstanding said tax
deed is void upon its face for the reason stated, it constitutes a
claim and color of title sufficient to put in motion the statute of
limitations in favor of any person in possession under it."
"3d. That the possession taken by Parks and Montgomery of said
land under said tax deed, in the manner set out in the finding of
facts, constitutes in law actual, peaceable, open, notorious, and
adverse possession of the whole of said land, and, said possession
of said land having been taken by Parks and Montgomery as early as
the month of February, 1874, and maintained continuously by them
and their grantees down to the trial of this cause, the plaintiff's
right of action to recover said land is barred by the two-years
statute of limitation contained in section 4475 of Mansfield's
Digest and also by the seven-years statute of limitation contained
in section 4471 of the same digest."
Among the requests asked by the plaintiff and refused by the
court were the following declarations of law:
"6th. The plaintiff's title to the lands in this case, and that
of those under whom he claims, dates from the issuance of the
patent of the United States to the Mississippi, Ouachita and Red
River Railroad Company on the 15th day of April, 1875, and the
statute did not commence running in behalf of the defendants or any
of them until such patent was issued."
"8th. That no adverse possession of land can be acquired
Page 132 U. S. 243
while the title is still in the United States government, and
that the patent issued on the 15th day of April, 1875, did not
relate back so as to make the possession of the defendants adverse
prior to the date of the patent."
"9th. That neither the plaintiff nor the railroad company, under
which he claims, could have maintained a suit of ejectment in the
courts of the United States for the possession of the land
described in his complaint on an equitable title, nor until the
legal title had passed out of the government on the 15th April,
1875, and this action did not accrue to them until the date of the
patent."
"10th. That, this suit having been commenced on the 11th day of
April, 1882, within seven years from the date of the patent, the
plaintiff's cause of action was not barred by the statute of
limitations."
"11th. That the deed of V. V. Smith, clerk, not being a
sheriff's deed or an auditor's deed, or a deed commonly called a
'donation deed,' is not within the terms of the two-years statute
pleaded by defendants (ยง 4117, Gantt's Digest), and this action is
not barred by that statute."
These rulings upon the law of the case by the court present two
distinct propositions, on which error is assigned here. One of
these is that which holds the seven-years statute of limitations,
which is the general period of limitation prescribed for the
benefit of adverse possession, to be a good defense in this case.
The other is the same holding in regard to the two-years limitation
law.
It is apparent from the finding of the facts that the action,
which was commenced on the 11th day of April, 1882, was within the
seven years allowed by the statute of the time that the cause of
action accrued, if that is to be computed from the 15th day of
April, 1875, the date of the patent introduced by plaintiff. That
such is the law in regard to the action of ejectment in the courts
of the United States has been repeatedly decided. The foundation of
this rule is the proposition that time does not run against the
government; that no statute of limitation affects the rights of the
government, unless there is an express provision to that effect in
the statute, and even
Page 132 U. S. 244
then it cannot be conceded that state legislation can in this
manner imperil the rights of the United States or overcome the
general principle that it is not amenable to the statute of
limitations or the doctrine of laches. The facts found in the
present case leave it beyond question that the legal title to the
property in controversy was in the United States until the issuing
of the patent to the railroad company.
In the courts of the United States, where the distinction
between actions at law and suits in equity has always been
maintained, the action of ejectment is an action at law, and the
plaintiff must recover on the legal title. If it be shown that the
plaintiff has not the legal title; that the legal title at the time
of the commencement of the action, or at its trial, is in some
other party, the plaintiff cannot recover. The facts in the present
case show that this title to the land in controversy was in the
United States until the 15th day of April, 1875. Up to that time,
the statute of limitations could not begin to run in bar of any
action dependent on this title. The plaintiff could not sue or
recover in the courts of the United States upon the equitable title
evinced by his certificate of purchase made by the register of the
land office. His title, therefore, being derived from the United
States, the right of action at law to oust the defendant did not
commence until the making of that patent.
In the case of
Lindsey v. Miller's
Lessee, 6 Pet. 666, the defendants relied upon a
patent issued by the Commonwealth of Virginia, dated March, 1789,
under the survey and entry made in January, 1783, and duly recorded
in that year. They then proved possession for upwards of thirty
years. The plaintiff introduced a patent from the United States, in
which was the legal title, dated December 1, 1824, thirty-five
years after the patent issued by the Commonwealth of Virginia. The
action was brought in 1832.
This Court, in regard to the issue thus made, expressed itself
in the following terms:
"That the possession of the defendants does not bar the
plaintiff's action is a point too clear to admit of much
controversy. It is a well settled principle that the statute of
Page 132 U. S. 245
limitations does not run against a state. If a contrary rule
were sanctioned, it would only be necessary for intruders upon the
public lands to maintain their possessions until the statute of
limitations shall run, and then they would become invested with the
title against the government and all persons claiming under it. In
this way, the public domain would soon be appropriated by
adventurers. Indeed, it would be utterly impracticable by the use
of any power within the reach of the government to prevent this
result. It is only necessary, therefore, to state the case in order
to show the wisdom and propriety of the rule that the statute never
operates against the government. The title under which the
plaintiff in the ejectment claimed emanated from the government in
1824. Until this time, there was no title adverse to the claim of
the defendants. There can, therefore, be no bar to the plaintiff's
action."
The case of
Bagnell v.
Broderick, 13 Pet. 436, which has been a leading
case in this Court for many years, was an action of ejectment in
which a patent from the United States to John Robertson, Jr., was
relied on by the plaintiff as being the origin of his title. The
defendants relied upon certain proceedings in the United States
land office in Missouri by which the property was deemed to have
been appropriated under the act of Congress concerning New Madrid
lands which had been lost by the earthquake, and had been certified
to Robertson, and a deed from Robertson to the parties under whom
defendants claimed. But this Court held that the patent of the
United States, issued long afterwards to Robertson, was the
strictly legal title on which plaintiff was bound to recover, and
in making the decision the following language is used:
"But suppose the plat and certificate of location had been made
and returned to the recorder in the name of Morgan Byrne, and that
it had been set up as the better title, in opposition to the patent
adduced on behalf of the plaintiff in ejectment, still we are of
opinion the patent would have been the better legal title. We are
bound to presume, for the purposes of this action, that all
previous steps had been taken by John Robertson, Jr., to entitle
himself to the patent, and that he had the superior right to obtain
it notwithstanding the
Page 132 U. S. 246
claim set up by Byrne, and, having obtained the patent,
Robertson had the best title, to-wit, the fee, known to a court of
law. Congress has the sole power to declare the dignity and effect
of titles emanating from the United States, and the whole
legislation of the federal government in reference to the public
lands declares the patent the superior and conclusive evidence of
legal title. Until its issuance, the fee is in the government,
which, by the patent, passes to the grantee, and he is entitled to
recover the possession in ejectment."
Perhaps the case which presents the whole of this question in
the strongest light is that of
Gibson v.
Chouteau, 13 Wall. 92. That was a writ of error
from this Court to the Supreme Court of Missouri, and that court
had held that under the statutes of that state, by which an action
of ejectment could be sustained upon an equitable right only, the
bar of the statute of limitations began to run when the right of
action under such equitable title accrued. The case was several
times before the supreme court of that state, which finally decided
in favor of the defendants on the plea of the statute of
limitations, although the patent under which plaintiff claimed to
recover had been issued within the ten years which that statute
allowed. In delivering its opinion, that court used the following
language:
"But there is another principle upon which we think the statute
may be made to operate here as a bar to the plaintiff's action, and
that is the fiction of relation whereby the legal title is to be
considered as passing out of the United States, through the patent
at its date, but as instantly dropping back in time to the date of
the location as the first act or inception of the conveyance, to
vest the title in the owner of the equity as of that date, and make
it pass from him to the patentee named through all the intermediate
conveyances, and so that the two rights of entry and the two causes
of action are thus by relation merged into one, and the statute may
be held to have operated on both at once. The legal title, on
making this circuit, necessarily runs around the period of the
statute bar, and the action founded upon this new right is met by
the statute on its way, and cut off with that which existed
before."
39 Mo. 588.
Page 132 U. S. 247
This is precisely the principle asserted in the case before us.
The Mississippi, Ouachita and Red River Railroad Company, under
whose patent the plaintiff claims, had made the entry and received
the certificate of that entry, and of the payment of the money for
this land, September 10, 1856. The patent on this certificate was
not issued until April 15, 1875, which was nineteen years after the
entire equitable interest in the land in controversy had been
vested in the railroad company by virtue of the payment of the
money and the register's certificate. As the title of Redfield had
its inception in this proceeding, it is now argued, and the circuit
court must have so decided, that the statute of limitations,
instead of leaving it to commence with the issue of the patent, did
run through the whole course of the possession of the defendant
after the date of the issue of the register's certificate in 1856.
Whether the statutes of Arkansas would have authorized an action to
recover the possession by virtue of the register's certificate or
not, it is precisely the same principle as that asserted by the
Supreme Court of Missouri in the case of
Gibson v.
Chouteau. The opinion of this Court, delivered by MR. JUSTICE
FIELD in that case, states with great clearness the principle that
a statute of limitation does not run against the state unless it is
so expressly declared, and adds that
"As legislation of a state can only apply to persons and things
over which the state has jurisdiction, the United States are also
necessarily excluded from the operation of such statutes."
With regard to the relation back to the inception of the title
the court says (p.
80 U. S.
100):
"The consummation of the title is not a matter which the
grantees can control, but one which rests entirely with the
government. With the legal title, when transferred, goes the right
to possess and enjoy the land, and it would amount to a denial of
the power of disposal in Congress if these benefits, which should
follow upon the acquisition of that title, could be forfeited
because they were not asserted before that title was issued."
In regard to the principle asserted by the Supreme Court of
Missouri, the opinion says:
"The error of the learned court consisted in overlooking the
fact that the doctrine of relation is a fiction of law adopted by
the courts solely
Page 132 U. S. 248
for the purposes of justice, and is only applied for the
security and protection of persons who stand in some privity with
the party that initiated proceedings for the land, and acquired the
equitable claim or right to the title. The defendants in this case
were strangers to that party, and to his equitable claim, or
'equitable title,' as it is termed, not connecting themselves with
it by any valid transfer from the original or any subsequent
holder. The statute of limitations of Missouri did not operate to
convey that claim or equitable title to them. It only extinguished
the right to maintain the action of ejectment founded thereon,
under the practice of the state. It left the right of entry upon
the legal title subsequently acquired by the patent wholly
unaffected."
"In the federal courts, where the distinction between legal and
equitable proceedings is strictly maintained and remedies afforded
by law and equity are separately pursued, the action of ejectment
can only be sustained upon the possession by the plaintiff of the
legal title. For the enforcement of equitable rights, however
clear, distinct equitable proceedings must be instituted. The
patent is the instrument which, under the laws of Congress, passes
the title of the United States. It is the government conveyance. If
other parties possess equities superior to those of the patentee,
upon which the patent issued, a court of equity will, upon proper
proceedings, enforce such equities by compelling a transfer of the
legal title, or enjoining its enforcement, or cancelling the
patent. But in the action of ejectment in the federal courts, the
legal title must prevail, and the patent, when regular on its face,
is conclusive evidence of that title. . . ."
But neither in a separate suit in a federal court nor in an
answer to an action of ejectment in a state court can the mere
occupation of the demanded premises by plaintiffs or defendants,
for the period prescribed by the statute of limitations of the
state, be held to constitute a sufficient equity in their favor to
control the legal title subsequently conveyed to others by the
patent of the United States, without trenching upon the power of
Congress in the disposition of the public lands. That power cannot
be defeated or obstructed by any occupation of
Page 132 U. S. 249
the premises before the issue of the patent, under state
legislation, in whatever form or tribunal such occupation be
asserted.
13 Wall.
80 U. S. 101,
80 U. S. 104. These
principles are illustrated by other cases in this Court, such as
Rector v.
Ashley, 6 Wall. 142;
United States v.
Thompson, 98 U. S. 486.
The question of the two-years statute of limitation of Arkansas
presents other considerations. That statute is in the following
language:
"No action for the recovery of any lands or for the possession
thereof against any person or persons, their heirs or assigns, who
may hold such lands by virtue of a purchase thereof at a sale by
the collector or commissioner of state lands for the nonpayment of
taxes, or who may have purchased the same from the state by virtue
of any act providing for the sale of lands forfeited to the state
for the nonpayment for taxes, or who may hold such lands under a
donation deed from the state shall be maintained unless it shall
appear that the plaintiff, his ancestor, predecessor, or grantor
was seised or possessed of the lands in question within two years
next before the commencement of such suit or action."
There can be no question but that more than two years had
elapsed after the issue of the patent of the United States under
which plaintiff asserts title and after his cause of action had
accrued during which the defendants were in possession of a part,
if not the whole, of the land in controversy. Therefore, if the
circumstances of that possession are such as to bring it within the
purview of this statute, the possession was a bar to recovery. On
this subject the court declared, as conclusions of law, first that
the tax deed under which defendants claimed is void because the
land was sold for taxes of 1868 on a day not authorized by law;
second, that under the laws of this state, notwithstanding the said
tax deed is void upon its face for the reason stated, it
constitutes a claim and color of title sufficient to put in motion
the statute of limitations in favor of any person in possession
under it; third, that the possession taken by Parks and Montgomery
of said land under said tax deed in the manner set out in the
finding of facts constitutes in law
Page 132 U. S. 250
actual, peaceable, open, notorious, and adverse possession of
the whole of said land, and, said possession of said land having
been taken by Parks and Montgomery as early as the month of
February, 1874, and maintained continuously by them and their
grantees down to the trial of this cause, the plaintiff's right of
action to recover said land is barred by the two-years statute of
limitation contained in section 4475 of Mansfield's Digest and also
by the seven-years statute of limitation contained in section 4471
of the same digest.
We think it very clear that the judge was correct in holding
this tax deed to be void. It was not merely void by extrinsic facts
shown to defeat it, but was absolutely void on its face. But we
think that the court erred in holding that such an instrument could
create color of title which would bring the case within the
foregoing statute of limitations.
The case of
Moore v.
Brown, 11 How. 414, brought the question before
this Court. The Court said , p.
52 U. S.
425:
"It is disclosed upon the face of the deed that the auditor sold
the land short of the time prescribed by the act. It was not, then,
a sale according to law. That must have been as well known by the
purchaser as it was by the auditor."
After a somewhat elaborate opinion, it was certified to the
circuit court, from which the case had come by division of opinion,
"that the paper offered in evidence by the defendant is a void deed
upon the face of it, and was not admissible as evidence for the
purpose for which it was offered," which was to support the
possession under the statute of limitations.
A similar decision was made in the case of
Walker v.
Turner, 9 Wheat. 541.
Many of the states of the union have enacted what are called
"short statutes of limitation," the object of which is to protect
rights acquired under sales of real estate for taxes. The general
purpose of these statutes is to fix a period of time running in
favor of the holder under such tax titles, after which the validity
of that title shall not be questioned for any irregularity in the
proceedings under which the land was sold. This object was
generally attained by the enactment of
Page 132 U. S. 251
short statutes of limitations, by means of which the party in
possession under such defective titles can, by pleading this
statute, make his title good.
The brief of counsel in this case produces many instances of
cases decided in the courts, under statutes of this class, and the
general principle pervading them is well expressed by the Court of
Appeals of Kentucky in the case of
Trustees of Kentucky
Seminary v. Payne, 3 T.B.Mon. 161, in which the court
says:
"Instead of twenty years mentioned in the general act, but seven
years is required by the act of 1809; but, to form a bar to an
action, something more is required by the latter act than an
adverse possession for seven years."
In
Waterson v. Devoe, 18 Kan. 223, the court held that
the tax deed which upon its face showed that it was void did not
support the possession as a bar under the short statute of
limitations in that state which applied to actions for the recovery
of lands sold for taxes. The court in that case said, quoting from
the previous case of
Shoat v. Walker, 6 Kan. 65:
"A tax deed, to be sufficient when recorded to set the statute
of limitation in operation, must of itself be
prima facie
evidence of title. . . . It is not necessary that it be sufficient
to withstand all evidence that may be brought against it to show
that it is bad, but it must appear to be good upon its face. . . .
When the deed discloses upon its face that it is illegal, when it
discloses upon its face that it is executed in violation of law,
the law will not assist it. No action under the statute of
limitations can then be brought in to aid its validity."
Similar decisions have been made in the cases of
Mason v.
Crowder, 85 Mo. 526;
Sheehy v. Hinds, 27 Minn. 259;
Cutler v. Hurlbut, 29 Wis. 152;
Gomer v. Chaffee,
6 Colo. 314;
Wofford v. McKinna, 23 Tex. 36.
We do not discover in the statute of Arkansas, nor in the
decisions of its courts cited by counsel for defendant, anything to
contravene these views, and we think that both the weight of
authority and sound principle are in favor of the proposition that
when a deed founded on a sale for taxes is introduced
Page 132 U. S. 252
in support of the bar of a possession under these statutes of
limitations, it is of no avail if it can be seen upon its face and
by its own terms that it is absolutely void. We are satisfied,
therefore, that in regard to the defense under both statutes of
limitation, the declarations of law by the court were erroneous,
and for that reason its judgment is
Reversed, and as the finding of facts by the court is before
us, and these are the only matters worth attention, it is ordered
that the circuit court enter judgment for the plaintiff.